Chan Kin Choi v Public Prosecutor

JurisdictionSingapore
JudgeChao Hick Tin J
Judgment Date17 January 1991
Neutral Citation[1991] SGCA 2
Docket NumberCriminal Appeal No 11 of 1988
Date17 January 1991
Published date19 September 2003
Year1991
Plaintiff CounselP Palakrishnan and A Rajandran (Palakrishnan & Partners)
Citation[1991] SGCA 2
Defendant CounselSowaran Singh (Deputy Public Prosecutor)
CourtCourt of Appeal (Singapore)
Subject MatterPenal Code (Cap 224) s 300,No premeditation,Special exceptions,Mixed statement,Sudden fight,Statements,Culpable homicide not amounting to murder,Criminal Law,Evidential status and weight of exculpatory portion of statement,Criminal Procedure and Sentencing,Whether trial judges gave sufficient weight to exculpatory portions of appellant's statement

Cur Adv Vult

This is an appeal against the conviction of the appellant of the capital offence of having murdered one Lee Mui Kee by stabbing him in the neck with a knife at the `Big A` Fried Chicken Restaurant at Upper Serangoon Road on 8 April 1985 at about 9pm [see [1989] 1 MLJ 404 ]. At the conclusion of the hearing of this appeal, we were of the view that the learned trial judges had not, in the light of other independent and hard evidence led by the prosecution, given sufficient weight to the exculpatory parts of a statement given by the appellant which established on a balance of probabilities that the appellant had stabbed the deceased without premeditation in a sudden fight. As the case in our view fell squarely within exception 4 of s 300 of the Penal Code (Cap 224), the appellant was guilty of culpable homicide not amounting to murder and we sentenced him under s 304(b) of the Penal Code to a term of ten years` imprisonment.

This appeal raised a question of general importance in the law of evidence in a criminal trial in relation to the evidential status of the exculpatory part or parts of a `mixed statement` voluntarily made by an accused under s 122(6) of the Criminal Procedure Code (Cap 68) (the `CPC`) and admitted `in evidence` under s 122(5) of the CPC.


The evidence giving rise to this vexed question of law and practice may be summarized as follows.
The appellant is a male Chinese. In April 1985 he was 25 and was working as a casual labourer. He and the deceased had been childhood friends. The deceased, a lorry driver, was also 26. At least two persons must have seen the killing but no witness came forward who could testify as to the actual stabbing and how it had occurred. The proprietor of the restaurant and four of his employees gave evidence. Three of the employees stated in evidence that the appellant and the deceased had patronized the restaurant that night at about 8pm. They sat at table 2 as marked on the sketch plan of the restaurant. It was at one far end of the restaurant, near the wall, and was away from the main and only entrance of the restaurant. They were drinking beer. The deceased sat next and to the left of the appellant. Two of the restaurant employees also testified that they saw at least two other male Chinese coming into the restaurant and sitting at the same table with the appellant and the deceased. They sat opposite them. Another witness, Toh Kwee Choo, said that she saw two or three other male Chinese entering the restaurant and joining the appellant and the deceased. She said: `... not long after that there was this noise of tables and chairs falling.` The police, despite their efforts, had not been able to trace these two or three male Chinese who could have shed a great deal of light as to what had happened that fateful night.

However, all five witnesses said that they heard a commotion.
Tables, chairs and glasses were heard to have been overturned or smashed. Two of them, Lee Leong Huat, the supervisor in the restaurant, and Chung Siew Choo, a waitress, also said in evidence that they saw the deceased running away from table 2, bleeding from the neck, and he was chased by the appellant who tried to stab the deceased. They said, however, that the appellant did not stab the deceased as the deceased had fallen down and had succumbed to his wound near table 9, which was near the main entrance of the restaurant. The appellant threw down two knives which were recovered from the vicinity of table 9 and ran out of the restaurant.

The investigating officer told the trial judges that he saw a trail of blood leading from the restaurant to the pavement outside the shopping centre in front of a coffee house.
The analysis of the blood swabs taken revealed that the blood taken at the restaurant and on both the knives was Group O, which was the blood type of the deceased. The blood taken from the trail of blood from the restaurant to the pavement outside the shopping centre was Group B. The accused`s blood group was A. This piece of evidence clearly suggested that another person had been injured.

The autopsy showed that the deceased had been stabbed in the left lower neck to a depth of 24cm.
The wound itself was 6cm long. The blade of the knife had transacted both the arteries in the neck and had also penetrated the lung. The blade was plunged downwards and backwards from left to the right side of the deceased`s body at an angle of 45o. This was the fatal wound. Haemorrhage from this wound was the cause of death. The deceased had also sustained a 3cm superficial wound at the back of his right wrist. It was a defensive wound.

At 2.50am on 9 April 1985 the appellant surrendered himself to the police.
He took the investigating officer to the Farrer Road hawker centre to recover his bloodstained T-shirt. He was brought to the Criminal Investigation Department. Between 7.25am and 8.30am that same morning, after the fateful night before, he made a voluntary statement to the investigating officer. His statement was as follows:

On 6 April 1985 the deceased `Ah Tee` asked me whether I was prepared to pay the loan of $2,000. As I did not borrow this sum of money from the illegal moneylender I refused to repay him the loan. Ah Tee then told me to get someone to settle the matter with him. He had suggested that I could go to his house at Hougang Avenue 3 on 8 April 1985 at 7.30pm. At the stated time I went to his house to look for him, but he was not at home. I have carried two knives with me, I tucked them in my trousers at the left waist and covered them up with my T-shirt. I bought the knives from an emporium at Hougang Avenue 6 before going to look for the deceased at his house. When I could not find him I went to the ground floor to wait for him.



I wish to add that I brought the knives to his place because I expected that I would be confronted by the deceased and his friends when I was unable to give him any money.
In fact prior to this meeting there were instances that I was assaulted by the deceased and his friends when I did not have the money to give them. About half an hour later I saw the deceased coming towards the block. When I spotted him I called him. Ah Tee came to me and asked me to follow him to Upper Serangoon Shopping Centre. I agreed and sat on his motor cycle. On our way to the Upper Serangoon Shopping Centre I noticed that there were two motor cycles behind us. I believe that the motor cyclists behind are from his gang. On arrival Ah Tee led me to the `Big A` fried chicken restaurant, both of us occupied a table in the restaurant. Ah Tee ordered a jug of beer and some chicken. The motor cyclists and the pillion riders did not enter the restaurant. They waited outside.

Whilst we were still in the restaurant another four of de`s gang came into the restaurant; one of them sat with us while the others sat at the next table.
When we were about to finish the chicken and the beer, Ah Tee asked me whether I had brought the $2,000 to him. When I answered him that I did not have money to give him even I agreed to pay the loan [sic]. On hearing what I said Ah Tee was unhappy and gave me a punch. I managed to dodge away but I was still hit slightly by the punch on my right cheek near the eye. After which Ah Tee and his gang stood up and came towards me, before they could do anything I whipped out a knife from my trousers and stabbed Ah Tee with it. I remember stabbing the deceased once. I then saw one of his gang members come forward. I immediately whip out another knife to attack him I did not know whether I had stab that person or not. At the same time I saw Ah Tee collapsed onto the ground. I immediately threw the knife which I was holding and fled.

From the scene I took a taxi to my friend`s house at Farrer Road to borrow a shirt from my friend.
I changed into fresh clothing and sat in the Farrer Road hawker centre for a while. After I had a cup of tea at the hawker centre I took a taxi to Punggol and went into hiding. In my uncle`s house I consider the matter again and decided to surrender myself to the police. I then requested my uncle to send me to the Paya Lebar Police Station where I surrender myself. That is all I have to say.

The statement was admitted `in evidence` under s 122(5) of the CPC as part of the prosecution evidence.
The prosecution then closed its case against the appellant.

Former counsel of the appellant submitted that the appellant had no case to meet.
He recognized that the trial judges, in addition to the prosecution evidence set out earlier in this judgment, also had before them an admission by the appellant that he had stabbed the deceased. But former counsel of the appellant stressed that the trial judges, nevertheless, had before them the explanations and allegations of the appellant as to the circumstances leading to the stabbing. It was submitted that the appellant`s explanations and allegations, viewed against the other prosecution evidence as a whole, were sufficient to establish one or more of the special exceptions to s 300 of the Penal Code. In connection with this submission, the trial judges in their judgment set out the following salient features of the appellant`s statement:

(1) prior to the incident, the accused had been assaulted by the deceased and his friends when he did not have money to give them;

(2) prior to his meeting the deceased on 8 April 1985, the accused bought two knives on the expectation that he would be confronted by the deceased and his friends;

(3) he met the deceased at the ground floor of the deceased`s flat and agreed to follow the deceased to the `Big A` restaurant; he sat on the deceased`s motor cycle;

(4) they were followed by two motor cycles whose riders belonged to the deceased`s gang;

(5) four of the deceased`s gang came into the restaurant while he and the deceased were drinking and eating;

(6) the deceased gave him a punch which hit him slightly on the left cheek;

(7)...

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2 books & journal articles
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